Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Strip-Search Cases and Judicial Diversity

Below is the exchange from Wednesday afternoon in which a member of the Senate Judiciary Committee lauded Judge Sonia Sotomayor for her dissent that would have barred all strip-searches of girls in a juvenile detention center.

(As I noted in an earlier post, I had missed the exchange.)

As it turns out, the question from Sen. Patrick Leahy, D-Vt., the committee chairman, does not draw much response from Judge Sotomayor about strip-searches or student rights.

Leahy's basic logic appears to be this: Sotomayor once wrote a nice opinion against strip-searches. The Supreme Court had a case about strip-searches in schools, but at oral argument the men on the court weren't very empathetic about the intrusive search of the middle school girl. But Justice Ruth Bader Ginsburg makes her colleagues understand how bad this search was, and influences the case to the point where only one justice would have upheld the search. This, in turn, is why it is important to have diversity of gender (and other backgrounds) on the Supreme Court.

In response, Sotomayor agrees with the proposition that it is good to have a diversity of backgrounds on the courts.

Here is the exchange, as transcribed by me from C-Span:

SEN. LEAHY: In a different context, you sat on a three-judge panel on a case involving the strip-search of girls at a juvenile detention center. … In a dissent, you cited controlling circuit precedent, described what is involved in strip searches of these girls without individual suspicion, who had never been charged with a crime, … and warned that courts should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to … psychological damage.

As a parent and a grandparent I agree with you. You also emphasized that many of these girls may have been victims of abuse or neglect, or were more vulnerable emotionally or mentally than other youths their age.

During oral argument in that case, one of the male justices compared the girl’s strip search to changing for gym class. Several other of the justices’ reaction was simply laughter.

Justice Ginsburg, the sole female justice on the court, described the search as humiliating, something that most parents realize.

[Leahy notes that the court rules for student Savanna Redding, with Justice David H. Souter's majority opinion "adopting Justice Ginsburg’s position and reasoning."]

I believe these cases underscore the need for diversity. They underscore having judges with a different life experience on the federal bench, including the Supreme Court. It’s been said here several times deciding cases doesn’t just require a computer, it requires real people. It does require real people with different life experiences.

You are a role model and a mentor to many young people. … How do you think it affects these young people to see only one woman on the Supreme Court today? How might it affect the confidence in the judicial system of litigants like young Savanna Redding?

JUDGE SOTOMAYOR: Senator, I think it is one of the reasons that every president in the last, say, 20 or 25 years has attempted to promote diversity on a basic understanding that our society is enriched by a confidence that our legal system includes all members of society.

I know that Justice Ginsburg has spoken about the fact of how much she misses Justice O’Connor, and not because she does not have a good relationship with her colleagues. …